Guantanamo Bay Still Unresolved

Coming up, we'll talk about why the Peace Corps is stepping up its efforts to recruit doctors and nurses to its ranks of people serving in developing countries. That's ahead.

But first, President Barack Obama is just about a week away from being sworn into his second term in office. So we have been looking at some of the unresolved issues from his first four years. Last week, we talk about housing, particularly the foreclosure crisis.

Today we want to talk about a topic that was a major campaign issue for then-candidate Obama in 2008, closing the U.S. military prison at Guantanamo Bay, Cuba. Here he is speaking to correspondent Steve Kroft on CBS' "60 Minutes." This was just days after he was elected president in 2008.

(SOUNDBITE OF "60 MINUTES")

STEVE KROFT: There are a number of different things that you could do early, pertaining to executive orders.

PRESIDENT BARACK OBAMA: Right.

KROFT: One of them is to shut down Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?

OBAMA: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world.

MARTIN: But, as you probably know, Guantanamo Bay is still open. And now the president faces a whole new set of political and legal challenges to keeping his word. Joining from our New York bureau to talk about this is NPR's counterterrorism correspondent, Dina Temple-Raston. Also with us is Karen Greenberg. She is the director of the Center on National Security at Fordham Law School and the author of a number of books on terrorism and civil liberties, including "The Least Worst Place: Guantanamo's First 100 Days." Welcome back to the program both of you. Thanks for joining us.

DINA TEMPLE-RASTON, BYLINE: You bet. Nice to be here.

KAREN GREENBERG: Thanks for having us.

MARTIN: So, Dina Temple-Raston, let me start with you. This month, activists mark, the 11th anniversary of the prison at Guantanamo Bay. Why is it still open?

TEMPLE-RASTON: Well, I think it's still open mostly because Congress has tied the president's hands on this. I mean, I would even say that now in the 11th anniversary, it's even further from closing than it was when President Obama first came into office. Congress has basically made it impossible for him to transfer any detainees out of there. The military commission's process there, which is basically this legal system that they have set up to try and get detainees out of Guantanamo and process them. It's an incredibly glacial process.

And then you have about, I think, 46 detainees there who are there under what is termed indefinite detention, which means that the Obama administration doesn't think that they can be released but also doesn't think that they can try them and have some sort of process.

MARTIN: Dina, what were - what are the most - I don't know if it's persuasive arguments for keeping the facility open, what were the arguments that held sway?

TEMPLE-RASTON: Well, I think there was more - the reason why the facility is state open is because there wasn't an organized political campaign from the Obama administration to close it quickly. And as a result, its opponents were able to sort of garner a lot of support and basically tie his hands.

But to answer your question about whether there are arguments for keeping it open. Some of the arguments that have been bandied about, about keeping it open, is that people do not want to set up a parallel system of justice that lasts forever - a system that applies to terrorists but doesn't apply to other people.

And there's also an argument increasingly now - there was a speech by Jeh Johnson who is sort of the - or was, he just left - was the top Defense Department lawyer, who basically said: What is going to happen to detainees, and what's going to happen to the way the U.S. has conducted the War on Terror after the war is over? In other words, after the authorization to use military force is no longer enforced. And the question is, if that happens, then all these detainees at Guantanamo, what happens to them?

MARTIN: I want to talk a little bit about the constitutionality - the constitutional questions that have been implicated here. But before we do that, Karen Greenberg, you vocally call for closing Guantanamo Bay. Could you just briefly summarize what are the arguments for closing it. I think maybe people forget now just how much energy there was around closing Guantanamo four years ago - or tell us why.

GREENBERG: There are several reasons for closing Guantanamo. And they coalesce in the reasons that the Obama administration and President Obama initially said that they would close it and that they would close it sometime in 2010. But the reasons to close it are numerous. And the first one is the, sort of, conceptual reason, which is that it represents a place still for many people outside the law, no matter how many partial laws we try to make or procedures apply.

The second reason is that it embraces the concept of indefinite detention, which means keeping people for however long we want to, without any kind of procedural remedy. No trial and no release. And Obama, in the late spring of 2009, let it be known that, in fact, indefinite detention would be a part of the policy of his administration going forward. And I think this may be the biggest concern for civil libertarians, constitutional scholars and others.

What is indefinite detention? How long does it last? Who else might it apply to besides those people that we've brought to Guantanamo Bay during the presidency of George Bush? And where is this all going?

MARTIN: And on the constitutional questions, do there remain constitutional questions that are in process here that are being evaluated by, one would have to assume, you know, the highest levels of government?

GREENBERG: Well, I think that - look, President Obama created several task forces at the beginning of his presidency to look at interrogation methods, detention policy, the closing of Guantanamo at large. The results of those task forces were rather minimal, but outlined the fact that we were in a - basically accepted the fact that we're in a new paradigm legally after the beginning of the War on Terror. And I think that that's very much where he stayed consistent with many of the lawyers inside the Bush administration and hasn't been willing to craft a new path.

What he has done is try to set up military commissions that are more recognizable to Article 3 courts than any military commission prior to this have been, at least during the War on Terror. And it's still a very iffy situation that the administration finds itself in. Very few people who have been opposed to Guantanamo are embracing these commissions, despite the fact that the chief prosecutor, Mark Martins, would very much like to liaison with members of the established legal community and the critics of Guantanamo to try to make these commissions acceptable. And there's still a tremendous amount of pushback from inside the legal community on this.

MARTIN: We're talking with Karen Greenberg, director of the Center on National Security at Fordham Law School and author of a number of books on terrorism and civil liberties; and NPR's counterterrorism correspondent Dina Temple-Raston. We're talking about unresolved issues from Obama's first four years in office. Today we're talking about Guantanamo Bay, why it's still open.

So, Dina Temple-Raston, let's talk about, you know, the political landscape and I think, I don't know if you agree with this, but the military landscape, if we could call that, has changed quite a bit in four years. Talk a little bit about that, if you would, about what you think the, kind of, the environment is that the president's facing now if he still tries to address this question.

TEMPLE-RASTON: Well, I think the really big change that we've seen is that with the drone policy that the Obama administration has so vigorously used, they have taken out most of the top leadership of al-Qaida. They've taken out its middle management, and we're getting closer and closer to the point where - and this discussion is starting to go on within the Obama administration - where the so-called War on Terror or the war against al-Qaida is drawing to a close. They basically killed everyone

And when you get to that point, that changes not just the political calculus but it changes the legal calculus too. What rules will apply if you no longer can say you're doing this under the ability to use military force to protect yourself? And no one's quite sure what the answers to those questions are. And people are just starting now to sort of get their arms around that. I mean, how do you keep, for example - as Karen was saying, there are 46 people who are in indefinite detention in Guantanamo. If there's no longer a war, if the hostilities have ended, what do you do with those people? Do you get to keep them?

I mean, theoretically, they're prisoners of war. Right? And they're kept until the end of hostilities, but if they're in indefinite detention, how does that apply? And they're going to have to - they've fudged this until now. They have not been very clear about who these people are or under what circumstances they're being held and they will lose a lot of their argument when the use of military force is no longer in force.

MARTIN: I want to give each of you time for a final thought. Dina, I wanted to ask, how big of a priority do you think this is for President Obama's second term?

TEMPLE-RASTON: I think it's a huge priority for Attorney General Holder, who is signing up for a second term with President Obama, and I think that this was one of the really big things he wanted to get done, and I think it's going to be a priority for him. I think that there are other priorities that are competing for it within the administration and the question is whether or not President Obama decides that this is going to be Holder's turn.

MARTIN: Karen Greenberg, how big of a priority is this for the advocates who have been requesting this and pressing for this all along?

GREENBERG: I think it's a large priority and I think it is tied, in some ways, to the predator killing program. I think that many of the people who supported the Obama Administration and who believed that those initial orders about ending Guantanamo were genuine sentiments - which I think they were - are deeply disappointed by the direction that he has taken in terms of embracing indefinite detention, not answering the question about what else we're going to do should we capture people on the so-called global battlefield of terrorism.

And I think that this, to civil libertarians and others, may potentially bleed into other issues in terms of who are our enemies and what are we going to do in terms of detaining them, trying them or killing them. And so I think it's become a much larger issue and the worries continue.

MARTIN: Karen Greenburg is director of the Center for National Security at Fordham Law School. Dina Temple-Raston is NPR's counterterrorism correspondent. They were both kind enough to join us from our bureau in New York.

Thank you both so much for speaking with us.

TEMPLE-RASTON: You're welcome.

GREENBERG: Thank you.

(SOUNDBITE OF MUSIC)

MARTIN: Coming up, for more than 50 years, Peace Corps volunteers have been helping to build schools, bridges and roads in developing nations. Now, the Peace Corps will add training medical professionals to that portfolio.

VANESSA KERRY: There's a classroom in Mali with over 2,000 students in it, a single teacher, a single blackboard, 100-degree heat and they're all sitting there because they want to learn.

MARTIN: A look at the new global health service partnership. That's just ahead on TELL ME MORE from NPR News. I'm Michel Martin.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright National Public Radio.